State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 21, 2016 D-24-16 

___________________________________

In the Matter of JOSEPH H. 

OSWALD, a Disbarred 

Attorney.

COMMITTEE ON PROFESSIONAL

STANDARD, MEMORANDUM AND ORDER

Petitioner; ON MOTION 

JOSEPH H. OSWALD,

Respondent.

(Attorney Registration No. 2002699)

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Calendar Date: March 7, 2016

Before: McCarthy, J.P., Rose, Lynch and Devine, JJ.

__________

Monica A. Duffy, Committee on Professional Standards,

Albany (Michael G. Gaynor of counsel), for petitioner.

Law Offices of Timothy J. O'Connor, Albany (Timothy J.

O'Connor of counsel), for respondent.

__________

Per Curiam.

Respondent was disbarred by this Court in 2007 (46 AD3d

1327 [2007]). By order entered January 14, 2016, we denied

respondent's application for reinstatement (135 AD3d 1154

[2016]). Respondent now moves for reargument or, in the

alternative, for permission to appeal to the Court of Appeals

from this Court's order.
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Initially, we are unpersuaded by respondent's primary claim

that reargument should be granted because he was allegedly

unfairly denied access to a background memorandum supplied to the

subcommittee of the Committee on Character and Fitness that was

prepared by this Court's staff. Significantly, respondent was

appropriately provided the final report from the subcommittee,

which recommended his reinstatement by a vote of 2 to 1 (see

Matter of Citrin, 94 NY2d 459, 464-465 [2000]). Prior to any

hearing, subcommittee members are allowed access to a

reinstatement applicant's disciplinary file. The challenged

staff memorandum recites the facts in respondent's disciplinary

file leading up to the 2007 order of disbarment and summarizes

the contents of his reinstatement application then pending before

the Court. Notably, the background memorandum prepared by staff

for the subcommittee's convenience is not included with the

information reviewed by the Court in determining a reinstatement

application (see generally Matter of Anonymous, 97 NY2d 332,

334-335 [2002]). Accordingly, any claim that this Court unfairly

considered nondisclosed information in considering the

reinstatement application has no basis. Respondent's arguments

on this point all stem from a factual matter mentioned in the

subcommittee's final report, which cites the background

memorandum – not the disciplinary file – as the source of that

fact. Notably, respondent acknowledges in his affirmation to the

subject motion that the fact cited in the subcommittee report is,

in fact, a matter that he previously testified to under oath

during a 2007 examination before petitioner and was included in

his disciplinary file. The subcommittee had access to

respondent's disciplinary file and could just as easily have

cited that examination transcript as the source of the

information rather than the background memorandum. Accordingly,

we find no evidence to support respondent's claim that he was

prejudiced or treated unfairly by the reference he cites in the

final subcommittee report.

Turning to the balance of the contentions raised by

respondent in his motion for reargument, inasmuch as respondent

has not demonstrated that this Court "'overlooked or

misapprehended the relevant facts, or misapplied any controlling

principle of law'" (Adderley v State of New York, 35 AD3d 1043,

1043-1044 [2006], quoting Foley v Roche, 68 AD2d 558, 567; see
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Matter of Dambrowski v Dambrowski, 8 AD3d 913, 915-915 [2004]),

his motion for reargument is denied.

Lastly, regarding respondent's request – in the alternative

– for permission to appeal to the Court of Appeals, we find no

basis to grant such relief on this record. Notably, this Court's

order was a final one and, therefore, permission to appeal may be

obtained directly from the Court of Appeals (see CPLR 5602 [a]). 

McCarthy, J.P., Rose, Lynch and Devine, JJ., concur.

ORDERED that respondent's motion is denied. 

ENTER:

Robert D. Mayberger

Clerk of the Court